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Inmate Executed After 11th-Hour SCOTUS Drama

Dec. 13 — Alabama put a convicted murderer to death Dec. 8 just hours after the U.S. Supreme
Court twice blocked the procedure and then twice cleared the way for the execution
to proceed (
Smith v. Alabama
, U.S., No. 16-7070, stay denied
12/8/16
).

The unusual flurry of eleventh-hour petitions and deliberations suggests that the
court remains deeply and evenly divided on the question of capital punishment.

The court’s four Democratic appointees—Justices Ruth Bader Ginsburg, Stephen G. Breyer,
Sonia Sotomayor and Elena Kagan—all
voted to extend the temporary stay of execution granted to Ronald B. Smith, but apparently
couldn’t persuade a so-called “courtesy fifth” vote from any of their colleagues that
would’ve postponed the execution until the court reviewed the merits of his petition.

Just days later, on Dec. 12, the divide revealed itself again when Breyer took his
colleagues to task for not reconsidering the constitutionality of the death penalty
itself in an unrelated case involving Henry Perry Sireci, a Florida inmate who has
been on death row for 40 years.

“When he was first sentenced to death, the Berlin Wall stood firmly in place,” Breyer
wrote in his dissent from a denial of certiorari in
Sireci v. Florida, U.S.,
No. 16-5247,
cert. denied 12/12/16.

Breyer also pointed to recurring problems with the fumbling manner in which lethal
injections are often administered and the struck-by-lightning randomness of death
sentences.

“As I and other Justices have previously pointed out, individuals who are executed
are not the ‘worst of the worst,’ but, rather, are individuals chosen at random, on
the basis, perhaps of geography, perhaps of the views of individual prosecutors, or
still worse on the basis of race,” Breyer said.

Plea for Courtesy

Shortly before Smith was scheduled to be executed by lethal injection, Justice Clarence
Thomas
issued a temporary stay, presumably to give the full court an opportunity to review the
merits of Smith’s petition.

Four of the justices felt that Smith’s petition warranted further deliberations, but
they couldn’t persuade a fifth justice to join them in extending the stay, even under
the court’s tradition of a “courtesy” fifth vote.

In the past, the court has employed the so-called “courtesy fifth” whenever there
are four votes to hear a death row inmate’s appeal and another justice steps up to
deliver the fifth vote needed to stay the execution.

But that’s an informal practice and it isn’t clear why it wasn’t used in this case.

An Alabama jury recommended by a vote of seven to five that Smith be sentenced to
life in prison without the possibility of parole for killing a convenience store clerk
in 1994. The judge, however,
sentenced him to death under the state’s unique capital-sentencing procedure which permits certain judicial
overrides.

‘Equal Justice.’

Smith’s lawyers got Thomas to issue a second temporary stay,
arguing that the court should reconsider its “inconsistent practices respecting 5-4 denials
in capital cases,” which clash with the concept of “equal justice under law.”

The four-member vote rule for certiorari grants was designed to increase the likelihood
that an unpopular litigant or issue would be heard in the court of last resort, the
petition argued. But death row inmates don’t get this benefit of the doubt when the
court adheres to the five-vote rule regarding stays of executions.

“In other words, every litigant in the country gets the benefit of the Rule of Four,
except those whose claims should have the highest call on the judicial conscience,”
the petition said.

Thomas is the justice who has jurisdiction over petitions coming out of Alabama, Florida,
Georgia, Louisiana, Mississippi and Texas.

The petition pointed out that Chief Justice John G. Roberts Jr. in November provided
the necessary fifth vote to delay a separate Alabama execution—even though he said
he thought it should go forward. Roberts
characterized his vote as a “courtesy” to his four colleagues who wanted to block the execution
until the court decided whether to take the inmate’s appeal.

Lawyers for Smith also argued that Alabama’s lethal-injection protocol violated the
ban against cruel and unusual punishment.

The court again
denied the motion; but this time there was no recorded discord.

The Federal Defenders for the Middle District of Alabama represented Smith. The Alabama
Attorney General’s Office represented the state.

To contact the reporter on this story: Lance J. Rogers in Washington at
LRogers@bna.com

To contact the editor responsible for this story:
C. Reilly Larson at
rlarson@bna.com

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